The detail of the European Union's long-awaited accession to the European Convention on Human Rights is like a "three-dimensional puzzle" because of the several vital and interlocking elements which need to be agreed, a new study suggests.
The Treaty of Lisbon created an obligation for the EU to accede to the ECHR, closing any remaining gaps in rights protection.
Although all EU member states are parties to the ECHR, they have obligations to comply both with EU law and with the ECHR. In the past there have been cases where this has appeared impossible and though the European Court of Human Rights (ECtHR) has thus far found a (not uncontroversial) solution, it is envisaged rights protections would be far tighter after EU accession.
The study, by Dr Christine Bicknell, from the University of Exeter Law School, says the Draft Accession Agreement of 2023 provides solutions and "vision and hope". It also suggests an appropriate solution to avoid proceedings before the ECtHR would be for the EU to undertake a wholesale review of its laws and approaches pre-accession, looking specifically to their ECHR compliance.
The paper examines the burden of proof in proceedings involving EU law in the European Court of Human Rights post-EU accession and in doing so offers an academic "stress-test" of the DAA 2023.
Dr Bicknell said: "The EU should be attentive to aspects within its laws and legal agreements, and subsequent protections at EU level, which might be vulnerable to challenge for non-compliance with the ECHR.
"There are differences in approach to proof between the two systems. There are aspects within EU laws which are vulnerable to challenge for ECHR compliance and which the EU should look to pre-accession. This may include for example, the regulation and restrictions on the use of artificial intelligence.
"With proceedings involving co-respondents it would be naïve to assume that member states and the EU will provide a united front as co-respondents. The challenges are not insurmountable, but they are present and identified [within the study]."
Accession negotiators since 2020 have had the unenviable task of accommodating certain core (rigid) features of EU law, such as the need to respect EU autonomy, mutual trust, and fixing and reshaping further aspects according to those requirements, such as joint responsibility and the co-respondent mechanism.
Under the DAA 2023 co-respondents would hold joint responsibility for any ECHR breach. This covers situations where EU law may be the problematic point within a case and situations in which the EU and a member state might be working together in joint operations.
In post-accession proceedings involving EU law, the burden of proof will mostly, if not always, require the applicant to provide either proof of fact or persuasive evidence that the relevant Convention right has indeed been breached.
